The Supreme Court (SC) has questioned the constitutionality of criminalizing adultery, saying existing laws on marital infidelity continue to discriminate against women and treat husbands and wives differently.

In a decision written by Senior Associate Justice Marvic Leonen, the SC en banc said Congress should review the provisions on adultery and concubinage under the Revised Penal Code.

“The constitutional right of every individual to ‘fundamental equality before the law of women and men,’ various statutory enactments, and our international commitments, render doubtful the constitutionality of adultery as a crime,” the court said.

The ruling stemmed from a case involving a married woman and her alleged lover who were arrested without a warrant by National Bureau of Investigation agents inside their condominium unit.

The woman’s husband had provided information to the NBI agents, but the SC ruled that the arrest was illegal because the agents had no personal knowledge that an offense was being committed, a requirement for a valid warrantless arrest.

The court upheld the earlier ruling of the Court of Appeals, which also affirmed the Regional Trial Court’s finding that the inquest proceedings were void because the arrests were unlawful.

The SC pointed out that adultery and concubinage carry different standards of proof and penalties under the law.

Adultery applies to a married woman who has sexual intercourse with a man other than her husband, as well as the man who knows she is married.

Concubinage, on the other hand, applies to a married man who keeps a mistress in the conjugal home, has sexual relations with another woman under scandalous circumstances or lives with her elsewhere.

The court said concubinage is harder to prove and carries a lighter penalty than adultery.

“The present state of laws continues to perpetuate discrimination particularly against women,” the SC said.

It also noted that while the Anti-Violence Against Women and Their Children Act of 2004 provides women with another legal remedy against marital infidelity, gender equality under the law has yet to be fully achieved.

The court said copies of its decision would be furnished to the President, through the Department of Justice, as well as the Senate President and House Speaker for possible legislative action.

The SC cited Article 5 of the Revised Penal Code, which allows courts to refer to Congress matters they believe should be addressed through changes in penal laws.IMT